Written by

Walter F. Roche Jr.

The Tennessean

In a move that attorneys say will hurt local victims of the fungal meningitis outbreak, a bankruptcy trustee is attempting to consolidate all the cases involving the outbreak — even those that don’t name the manufacturer of the fungus-tainted drug.

The consolidation motion is pending before a federal judge in Boston, who has asked all parties to comment prior to a ruling that is expected next month.

The cases that could be merged in Boston include three recently filed in circuit court in Nashville against the Saint Thomas Outpatient Neurosurgical Center. Those suits do not include as a defendant the New England Compounding Center, the original supplier of the tainted steroids.

In filings with the U.S. District Court in Boston, the U.S. Trustee for the bankrupt New England Compounding Center said the consolidation was necessary for “the orderly and efficient resolution” of hundreds of claims filed by victims or their survivors.

Attorneys for Trustee Paul D. Moore said in court filings that all the cases related to the outbreak should be merged “irrespective of whether a particular claimant filed a lawsuit against the debtor.”

“We want to keep the cases in Tennessee. The suits ought to be decided in Tennessee courts by Tennessee jurors. We are going to oppose that (consolidation),” said William Leader, one of the attorneys in the three recently filed cases against the Saint Thomas clinic.

Randy Kinnard, who also represents several of the local outbreak victims and their survivors, said the consolidation would reduce the amount that Tennessee victims could recover, since any awards from the local defendants would go into a central fund to be shared by all victims across the U.S.

He said the motion was an attempt to draw the Tennessee defendants and their assets into the nationwide case.

“In my opinion, it is highly unfair to punish Tennessee citizens by diminishing their potential recoveries by being required to share with people in other states assets properly resting in Tennessee,” Kinnard wrote in an email.

Kinnard said the action also could limit recoveries due to laws in other states.

“Our Tennessee citizens should not be adversely impacted by the state laws of some other state,” Kinnard added.

A spokeswoman for Saint Thomas said its lawyers will be reviewing the trustee’s motion to determine whether a response is necessary.

Bigger money pool

Fredric Ellis, a Boston attorney who represents several of the outbreak victims, said the motion by the trustee potentially could increase the pool of money available to victims by drawing in more defendants.

“That’s clearly the goal,” Ellis said of the motion.

Since New England Compounding is in bankruptcy and has limited assets, the motion would pull in “all potentially responsible parties.”

Ellis, like Kinnard, noted that the effect of differing state laws on claims is also a factor.

Though the exact amount has not been disclosed, the trustee in his filings noted that the insurance coverage carried by New England Compounding at the time of the outbreak was “limited.”

Ellis said he has not yet decided whether to oppose or support the consolidation motion.